[IP] more on Open letter from CDT on broadcast flag
Begin forwarded message:
From: Mike Godwin <mnemonic@xxxxxxxx>
Date: August 26, 2005 10:08:06 AM EDT
To: dave@xxxxxxxxxx, Ip Ip <ip@xxxxxxxxxxxxxx>
Cc: mnemonic@xxxxxxxx
Subject: Re: [IP] Open letter from CDT on broadcast flag
Dear Dave,
I think CDT deserves credit for owning up to the fact that its recent
paper on the broadcast flag gives some false impressions, both about
CDT's position, and about what makes the broadcast-flag scheme
problematic.
Even so, I think it is helpful to elaborate on four substantive
points where many of us who opposed the flag scheme, and who
successfully challenged it in court, think the CDT paper went wrong.
First, the CDT paper flatly accepts the studios' statement of the
problem (that digital TV is more piratable than other kinds of TV).
This statement of the problem is technologically bankrupt -- analog-
originating television is at least as piratable on the Internet as
digitally originating TV is, and arguably more so, since analog-to-
digital conversions are trivial, and since analog-originating TV
digitizes to much smaller file sizes than digital-TV native formats.
(HDTV must be hugely reduced in resolution -- and therefore visual
quality -- in order to be as easily distributed over the Internet. )
Second, the CDT paper assumes that if DTV piracy is a problem, then
the broadcast-flag scheme is the only possible solution. This too is
insupportable from a technological standpoint. Broadcasting your
signal in the clear and then "protecting" it by hobbling receivers,
computers, and other devices is an inherently brain-damaged
proposition. Any technologist not in the pay of a movie studio knows
this.
Third, while I respect CDT's desire that a broadcast-flag regime be
imposed, if at all, in a narrow and precise way, I must note that,
once you actually understand how the flag scheme works, you realize
that it can only work, if at all, if it is imposed broadly -- one
might more properly say "universally" -- and that entails huge
government oversight over everything, forever. Impose it narrowly,
and it will be so ineffective that you might as well skip it altogether.
Fourth, the CDT paper "papers over" other objections to the flag
scheme based on copyright policy. For example, while forbidding the
flagging of public domain and public affairs content is critical, it
does not go far enough. Flagging also should not be permitted for
programming specifically designed to serve the educational and
informational needs of children. Moreover, effective distance
education requires the ability to retransmit not only segments of
news broadcasts, but also of other programs with cultural
significance. (It was the impact of the flag on distance education
activities of libraries that provided petitioners with standing in
the DC Circuit.) Thus, government bodies and educational
institutions must be able to purchase and use demodulators that do
not respond to the flag, and manufacturers must be able to make such
devices for such institutions.
Those of us who have worked with CDT over the long term (I myself
worked for CDT for years) have no doubt that the flaws in CDT's most
recent paper on the broadcast flag scheme are, as Dave McGuire hints,
primarily the result of the rush to get something useful in front of
Congress, should Congress decide to act quickly on the proposal.
Nevertheless, we hope very much that CDT revises its paper not just
to ensure greater clarity, but also to correct the substantive issues
I outline above.
Furthermore, we think that Congress also should be urged to deal with
the broadcast-flag scheme, if at all, in a separate, freestanding
bill, rather than as a broadly worded amendment/addition to some
other bill, such as budget legislation. History teaches us that if
Congress attempts to add to a budget bill something like FCC
authorization to implement a broadcast-flag proposal, it will
inevitably be broadly and vaguely worded, and the result will be
antithetical to the kind of narrow and precise legislation CDT says
it would prefer.
Sincerely, and with respect to our friends at CDT,
Mike Godwin
Legal Director
Public Knowledge
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